You know what would also be awesome? No stay! Make SCOTUS keep doing it!

2. RemC_in_Chicago | August 26, 2014 at 10:23 am

Can I just say, "OMG" Valley-Girl style? Being in the courtroom was a fascinating experience. I feel so fortunate to have been there. Posner was clearly impatient and skeptical of our opponents' arguments, asking questions of IN and WI like "Why do you allow gay couples to adopt in IN but draw the line at allowing them the benefits and security of marriage?" His hard-hitting questions could only truthfully be answered by, "Because we don't like them; they're icky and not as good as us." He even said to the WI lawyer at one point, "You can't defend this, can you?" or something similar…No poker face there. He interrupted the IN lawyer from the get-go and got the lawyer quite riled up. Delicious to watch. Looked for the IN lawyer afterwards to thank him but couldn't find him alas. The panel asked fewer questions and did much more listening to our side. The questions to the opponents were logic-based, more along the lines of "You provide same-sex equal rights protections in WI; why do you draw the line at marriage?" and "What harm happens in your state by now allowing the children of gay parents to have the security of marriage for their parents? Who is hurt by this?" More than once, the WI lawyer was forced to answer "I don't know," which was just a bit more honest than the IN lawyer twisting himself into verbal pretzels. To our side, the questions from (mostly) Williams and Poster were on broader issues based on legal theories—Due Process, 14th Amendment, heightened scrutiny, etc. Posner was very direct to the opponents, insisting that they set aside legalese and just honestly answer questions about the illogical reasoning behind the bans, and wouldn't let them off the hook. Williams asked the least number of questions, but my favorite of hers was about the obstacles put in the path of gay couples who choose to be parents. My jaw dropped when the WI lawyer presented one of the rationales for the ban being that otherwise the institution of marriage would be devalued. I know I'm all over the place with the reporting, but I'm vibrating with excitement, so it's hard to think in a linear way.

3. domestic_god | August 26, 2014 at 10:30 am

It's always nice to have a direct Q&A of those fighting marriage equality and seeing them forced to defend their arguments and struggle to do so… something that was lacking, unfortunately, when these marriage bans were put forward in state legislatures and in statewide referendums.

4. RnL2008 | August 26, 2014 at 10:31 am

Nice job and thanks for posting your experience at the hearing:-)

5. weaverbear | August 26, 2014 at 10:38 am

I wish I could have been there for this! I'm envious. To be able to hear from the bench the things most in this community have been saying or thinking about our rights must have been nothing short of awesome!

6. Zack12 | August 26, 2014 at 10:41 am

Back when these bans were being passed, many of the people pushing for them didn't even bother to hide the fact it was based on animus.

7. Johan | August 26, 2014 at 10:44 am

Thanks!

8. domestic_god | August 26, 2014 at 10:57 am

Yes, you're right… but they were still free to spout all the fictional nonsense they wished, without having to defend it. Thank goodness for our courts, to give them their day of reckoning.

Thanks for sharing this. Personal accounts & reflections of hearings from folks on this forum are valuable to hear

11. Chuck_in_PA | August 26, 2014 at 11:00 am

At the beginning of the tape of the Indiana oral argument I wanted to shake Judge Posner's hand. By the end of the oral argument I wanted to give him a great big bear hug. Glad to listen to him refuse to suffer fool arguments. I agree with the other posters who expect this appeal to be 3-0 for ME.

12. Ragavendran | August 26, 2014 at 11:09 am

I garner that this court is likely to depart from the Tenth and Fourth Circuits in that this panel seems more comfortable taking the equal protection route and striking down the ban on rational basis review (possibly heightened scrutiny if there are no conflicting circuit precedents). They seemed uncomfortable and confused regarding the due process fundamental right argument, which led to a pretty disturbing and (relatively) lengthy discussion about polygamy.

I agree with those who've compared Posner with Kennedy in looking out for the children. I'd also like to compare Hamilton with Sotomayor for raising the question whether, aside from marriage, there are any other sector where sexual orientation based discrimination could be justified, with the same answer that Cooper gave during the Prop 8 oral argument: I don't think so.

And finally, I do agree with the 3-0 prediction. That will also mean a quicker writing and release of opinion, possibly within a couple of months…

This made my day so far! Going to start listening to the WI argument now.

13. ragefirewolf | August 26, 2014 at 11:12 am

Thank you, RemC!!!

14. RemC_in_Chicago | August 26, 2014 at 11:12 am

I kinda got the feeling that Hamilton was asking the question as devil's advocate, not because he took any of the polygamy issue seriously.

15. Ragavendran | August 26, 2014 at 11:13 am

Thanks a lot for your report – like others have said, personal experience of being present live in the courtroom compares to nothing, especially as the EoT team wasn't there this time.

16. Zack12 | August 26, 2014 at 11:15 am

Posner is what the Republican party used to be, not the far right judges like Sykes who simply make up facts to fit their own viewpoints.

17. LikesOkra | August 26, 2014 at 11:20 am

RemC – Thank you so much for your report. I wound up not being able to attend today, but I'm glad you could.

Grab a bowl of popcorn. This is the best entertainment you'll get all week.

19. samg68 | August 26, 2014 at 11:35 am

But from what I gather from the audio both the other judges seemed to make noises in agreement with Hamilton on that point. Sounded like it was at least something on all their minds.

20. Mike_Baltimore | August 26, 2014 at 11:39 am

The quick and constant interruption of the states' arguments vs. the listening and very few interruptions of the proponents of ME arguments pretty much lines up with several judicial watchers I've spoken with that the decision will go in our favor, hopefully a unanimous decision.

The 'saw' that these watchers (including former attorneys and former judges) believe in is that the longer the judges/justices allow a person to speak, the more they are in agreement with that speaker. Conversely, the quicker the interruption, and the number of total interruptions, the better an indication the judge/justice is skeptical of the arguments being presented.

21. Zack12 | August 26, 2014 at 11:48 am

Some people are cautioning that a judge's questions aren't an indication of how they will rule but let's be real here, from my hearing of the audio, none of the judges bought anything the bigots were offering.

22. RemC_in_Chicago | August 26, 2014 at 11:58 am

Yes, exactly. A Republican prior to the Tea Party Days.

23. RemC_in_Chicago | August 26, 2014 at 12:01 pm

I didn't get that they were taking it seriously, but following that argument from a legalese point of view, sort of like an intellectual excercise. There was a moment when I was thinking that they could've just closed up shop and gone home early when our lawyer finished speaking, but had to say something—so they came up with this. Note that I'm not a lawyer.

24. jdw_karasu | August 26, 2014 at 12:01 pm

Thanks RemC! Awesome update.

25. RemC_in_Chicago | August 26, 2014 at 12:02 pm

Right. I kept wondering if any of the questions or comments were smokescreens to hide their opposition. If f they were, the judges' acting abilities rival Meryl Streep's.

26. tornado163 | August 26, 2014 at 12:05 pm

I agree the panel were all very supportive on equal protection grounds. Posner seemed to be echoing Kennedy about looking out for the children of same sex couples.

As for the polygamy/due process discussion, what are the legal arguments against polygamy? You can't use a tradition argument because (A) the Bible allows polygamy and (B) it's not fair to use tradition to argue against polygamy but not against interracial or same-sex marriages. Maybe the state could make an argument about how nearly all polygamous marriages are 1 man multiple women and that leads to some sort of discrimination against women, but that's a totally different argument than anything involving same sex marriage.

27. cpnlsn88 | August 26, 2014 at 12:06 pm

Posner is a great catch for several reasons. He is a great legal mind and most likely to come up with something genuinely fresh after so many rulings but also because he is quoted in extenso in the ruling of the 8th circuit's ruling against us so a ruling in the 7th in our favour and in particular a leading opinion from Posner will be very persuasive in allowing the 8th to reverse course as well as being persuasive to SCOTUS.

28. Zack12 | August 26, 2014 at 12:11 pm

Judge Holmes of the 10th and Judge Floyd of the 4th were the only hard reads.
Other then that, the judges for or against made it clear early on where they stood.

29. Ragavendran | August 26, 2014 at 12:34 pm

He seemed to be skeptical of the whole legal principle of levels of scrutiny that has been established by the Supreme Court. I think our side struggled to counter his criticism of that in the Wisconsin case. (Of course, in this case, our side did concede first that even rational basis review would be enough to strike down the ban, but when it went on to talk about heightened scrutiny, Posner wasn't buying it.)

30. jdw_karasu | August 26, 2014 at 12:35 pm

I'm wondering if Posner's quite strong questioning, and the possible speed with which a unanimous decision will come down (quite possibly written by Posner) will impact Judge Sutton over in the 6th.

I think there was some thought here in the comments section that Sutton sounded like he'd just as soon slow walk the whole thing praying for SCOTUS to take up a case. That would allow the 6th to stay everything pending the inevitable SCOTUS decision, and save Sutton from having to rule and be seen by history as a bigot… or rule in favor when he's not fully comfy that way either.

Posner basically exposed the defense of the bans as nonsense and bigotry in so many words. Obviously we knew all that, and on some level it felt like Sutton knew that. But it's quite another thing when a well respected Conservative Legal Scholar just lays it all bare out there. Even more so if he writes an opinion firming that up, and in large degree teeing up Kennedy.

I'm crossing my fingers that Sutton goes into the old UNC Four Corners to try to run down the clock waiting for SCOTUS to take it up. I still suspect that Daughtrey would be more than happy to let him run the clock as well in hopes of avoiding him feeling the need to rule.

I also would still far prefer to have a 3 Circuit wins vs 0 defeats when SCOTUS takes it up.

31. sfbob | August 26, 2014 at 12:44 pm

If I understand correctly there are numerous arguments against polygamy such as the relationship of the various spouses with each other, allocation of rights among spouses, inheritance, equality/inequality where there is one man and multiple women. If a man is married to several women is there a separate marriage involving the man and one of the women or is it something else?

32. Eric | August 26, 2014 at 12:45 pm

The legal arguments against polygamy used in Reynolds were that non-white non-Christians did it.

33. Eric | August 26, 2014 at 12:47 pm

Posner treated the states' counsel like they were 1L's that didn't do the reading before coming to class.

34. PaulK_VT | August 26, 2014 at 12:48 pm

I am a little shocked at how little the ban defenders were willing to offer – tradition, respect for the democratic process, and the weak (and only after the fact) assertion to discourage unplanned pregnancies among straight singles. All three rationales were torn to shreds and the ban defenders were left with nothing. Talk about failing rational basis!

Wow, you were right. I just listened to the whole thing. That was great!

We are having a VERY good day today.

41. davepCA | August 26, 2014 at 1:33 pm

Yes, it can be true that interruptions from the judges, and even confrontational questions, don't necessarily indicate which way the judge is really leaning. But when the questions and interruptions start including things that amount to 'come on, you can't really expect us to believe THAT?' I think it becomes pretty clear that they are not just playing devil's advocate….. : )

From this interchange, it would seem that even their side acknowledges that they have lost:

Despite the seriousness of the hearing, there was some levity.
At one point, a visibly uncomfortable Samuelson struggled to offer a specific reason for how gay marriage bans benefit society. He then noted a yellow courtroom light was on signaling his allotted time was nearly up.
"It won't save you," Judge Ann Claire Williams, a Bill Clinton appointee, told him, prompting laughter in court.
Samuelson smiled, and said: "It was worth a try."http://www.wsoctv.com/ap/ap/indiana/wisconsin-ind…

44. Japrisot | August 26, 2014 at 2:09 pm

Well thank you for dredging up that horrible, horrible memory.

45. JayJonson | August 26, 2014 at 2:25 pm

I listened to the Indiana session this morning and thought that the judges were hard on the Indiana attorney, but after listening to the Wisconsin session, I think that there is no question that these judges will do the right thing. The Wisconsin attorney was hapless. Judge Hamilton, in his quiet, methodical way, simply demolished his arguments, with Judges Posner and Williams frequently piling on. Especially interesting to me is the difference between the open skepticism they expressed toward the states' arguments as compared to the respectful questioning of the attorney for the plaintiffs. This was a very good day for marriage equality.

46. davepCA | August 26, 2014 at 2:28 pm

I think my favorite section in the Wisconsin hearing may be the portion from about 11:30 to 17:20.

The state's lawyer was completely cornered, over and over again, and the judges simply would NOT let him off the hook. If you are not able to take the time to listen to the whole thing right now, do yourself a favor and at least listen to that section. It's awesome.

47. bayareajohn | August 26, 2014 at 2:29 pm

How can "responsible procreation" arguments be entertained as anything but post-hoc reconstructions of a way to explain away the gay. No one even implies that legislatures ever had this dialog while considering creating any recognition or benefit to marriage:
"The state has no interest in any recognition of marriage…."
"Wait, what if we use it exclusively as a bribe to encourage a safe harbor for sex without illegitimate children?"
"Go on…."

Unfortunately, without enhanced scrutiny, the state doesn't have to prove that was ever the purpose of the ban, nor that it would be effective if it were. Under rational basis review, it would be enough to say "Of course I'm not seriously arguing that it was ever considered as a reason, we all know it wasn't… but technically it could have been, and if it had been, it would have been within the rights and duties of the legislature, no matter how stupid."

One could also argue that if the point of banning gay marriage is that incentives by the state are not needed to manage their procreation, perhaps there should be a ban on Catholic marriage recognition by the state. The church already regulates their sex and procreation so the state could enjoy significant savings by withdrawing their benefits from such "marriages". The scare quotes are earned here – Catholic "marriages" are not actually marriages from the state point of view, if it offers marriage exclusively as bait for irresponsible procreaters.

Also note the very GOP overlay that the government's interest in children ends after insuring they are forced to be born without regard to being wanted, even if they have to bribe the parents into getting married. Then they are on their own. Hopefully the children have the good sense to stay with the couple being paid to be married. They might get some side benefit of the bribe.

Oh, and BAKER.

48. Ragavendran | August 26, 2014 at 2:42 pm

I also got the feeling that this panel was leaning much more on Loving than Windsor. In a hypothetical situation where this appeal had come before them before Windsor, we might have still won, perhaps more narrowly. (I'm assuming we've won in the Seventh, based on today's arguments.)

No words Scalia would write in the October 2013 term would be remotely as important or influential as his 2012 “prediction.” That’s because disguised within the flamboyant rhetoric, he had made an important legal concession.

Roberts had insisted that the majority was relying on federalism for its decision. States could allow gay marriage, true; but they could also refuse it. If that was the right reading, a judge might weigh the traditional state authority over marriage against the interests of same-sex couples and their children—an issue the majority explicitly refused to decide—and come down in favor of the state. But if Scalia’s analysis was correct—that is, if opposition to same-sex marriage was based on a “bare desire to harm” gays and lesbians—a district judge would be legally bound to strike down laws against it.

His Windsor dissent, written the year before, was his most influential opinion of the term, doing its work in the lower courts. It may be remembered as the most influential opinion of his career.

I'm quite sure that isn't what Scalia intended but when he throws his temper tantrums, he can't help himself.
He also doesn't bother with BS, which is another reason why he said what he said.
If you read Windsor, it more or less makes upholding state bans impossible.

52. ranjitbahadur0 | August 26, 2014 at 3:30 pm

You are completely correct in noting that all States new-found interest in responsible procreation is post-hoc justification. If they truly were interested in R.P. they wouldn't be so opposed to birth control and sex-ed either, but that's a different argument.

I do disagree with you about the rational basis review – even without heightened security the State must still demonstrate a 'RATIONAL' cause-and-effect link between the law and its intended effect; you just don't have to demonstrate that the interest is compelling or critical. For example you cannot say "Well the state has an interest in reducing traffic fatalities, so people are no longer allowed to wear green clothes". One thing has nothing to do with another.
While the 4th CA has applied heightened scrutiny (and the 9th will as well), none of the district courts have applied it and come to the same conclusion – the law doesn't even survive rational basis review. Preventing same sex couples from marrying will not impact the behavior of opposite sex couples in any way, that is an irrational link.

53. Steve | August 26, 2014 at 3:47 pm

That analysis leaves out a half sentence that the right-wingers also ignore. They did say that marriage is traditionally a state's issue (which is extremely stupid today, but it's how it is), but that states can't just ignore people's constitutional rights.

54. Zack12 | August 26, 2014 at 3:47 pm

The Tea Party folks are merely Republicans who don't know how to keep their far right view points to themselves until they get into office.
As an early member of the Federalist Society, Orrin Hatch has been one of the people leading the charge to turn the courts to the far right and he had great success from blocking Clinton from being able to appoint progressive judges to simply ignoring Senate rules to push for far right judges to confirmed.
He is no better then Ted Cruz or Mike Lee, just less vocal.

55. bayareajohn | August 26, 2014 at 3:50 pm

The problem with "rational basis" is that, like pornography, judges "know it when they see it", and some see it and some don't. The pitch that incentives for marriage might reduce illegitimacy isn't as tangential as your posed ban on green to reduce fatalities. It's subjectively irrational, but have you met many judges? The variation among them is as great as the variation of arguments, and that's why rational basis is not "enough" for us.

56. Zack12 | August 26, 2014 at 3:53 pm

Republicans tried to block him from getting on the bench too.

57. Japrisot | August 26, 2014 at 3:55 pm

Judge Posner: "You don't have any empirical or even conjectural basis for your law . . . funny."

58. Zack12 | August 26, 2014 at 4:01 pm

I did hear the audio and the only part our side stumbled on was the polygamy question.
All due respect to our side, we gotta handle that question better when it's before the Supreme Court, only to help our cause with Kennedy, who is the key vote on this.

59. bayareajohn | August 26, 2014 at 4:10 pm

I enjoyed the continued returning to questions of "is it right" and "should it be" and "is that fair" and "does that work". These judges are probing justice, not just procedural checkboxes.

60. sfbob | August 26, 2014 at 4:17 pm

I managed to listen to a good portion of the hearing, up to about minute 23 or so. Samuelson just keeps digging himself a bigger and bigger hole and in the end admits, in effect, to not being very well prepared to argue the case. He even says so for example when he responds to (I believe Posner's) question about what dire things might happen if equal marriage to obtain. He keeps circling back to no-fault divorce even though it was already noted that the consequence he describes was foreseen as no-fault divorce laws were being passed. It's all he's ready for so it's all he can discuss. The guy's just pathetic.

61. Ryan K. | August 26, 2014 at 4:19 pm

I've read both posts, and while I eagerly wait to get back to the hotel from work to listen to them, I can't help but think/ask (which I haven't seen yet): If we are to get a 3-0 decision with this favorable panel, would the lawyers opposing marriage equality be well positioned to ask for an en banc review in order to get the votes of the remaining active (presumably less favorable) judges in the circuit? If they wanted to get a notch under their belt before going to SCOTUS, would this 7th circuit en banc review give them that win?

62. sfbob | August 26, 2014 at 4:20 pm

Yes. There is, after all, a difference between an actual reason, even if it's thrown together after the fact, and an excuse. One could otherwise argue that any sentence with a subject and a predicate would serve as a rational defense of a law, provided that the topic under discussion somehow found its way into the sentence.

63. andrewofca | August 26, 2014 at 4:22 pm

Posner calls Indiana's current definition of marriage "arbitrary" (~15:00). I love this judge.

64. bayareajohn | August 26, 2014 at 4:28 pm

…and they do so argue, we heard it today… and some judges buy it (less and less, these days).

Strategically speaking, yes, the lawyers for WI and IN should probably press for an en banc review after the opinion comes down. But realistically speaking, I wouldn't think they have the time. Everybody knows SCOTUS is going to have to decide this anyway, and if they want to throw their hat in that ring, there's no time for an en banc detour. Other cases will pass them by. And I would think as soon as SCOTUS agrees to take any case, all the lower courts will freeze their cases wherever they stand.

66. Zack12 | August 26, 2014 at 4:41 pm

Plus, a win isn't guaranteed.
Frank Easterbrook and Diane Sykes would rule against us but the other Republicans could be like Posner on this issue.
It's hard to tell because I haven't been able to find out enough info about them one way or another.

67. Japrisot | August 26, 2014 at 4:45 pm

I have never heard the words "I don't know" uttered so many times by an attorney in front of a federal appellate panel. My jaw truly dropped repeatedly. My favorite bit was when Posner asks why equal marriage would cause heterosexuals to marry less, and the advocate responds, "I am unfamiliar with this, I can brief this later," and Posner replies, "How can you brief it? You don't know anything about it." Ha!

68. F_Young | August 26, 2014 at 4:50 pm

Well, there is one rather outrageous argument against polygamy (and for same-sex marriage) that is rarely made, though it makes sense from a patriarchal point of view.

In practice, polygamy typically involves a prosperous man who marries two or more women. As a result, for every polygamous marriage, at least one poorer man is doomed to be unable to find a woman to marry and thus to have children who carry his name.

This is where same-sex marriages could present a solution of sorts in patriarchal societies; allowing two men to marry each other would free up two women for heterosexual men who would otherwise be unable to marry due to polygamy. This only works with marriages between men, but patriarchal societies tend to ignore marriages between women, and the impact of polygamy on women, anyway.

Yet, strangely, South Africa is the only country where polygamy is common that recognizes same-sex marriages.

69. bayareajohn | August 26, 2014 at 4:52 pm

PLUS 100 on the need to drill on quick response to polygamy. Unanswered, it hangs in the air as if it is the other shoe waiting to drop.

Responses are available:
1. This same question was as relevant, or rather as irrelevant, in LOVING; if you have a "right" to marry someone of any race of your choosing, don't you have a "right" to marry more than one?
2. This Court must rule justly on the case and facts at hand, not on a hypothetical future case unrelated to the facts here and now.
3. Many more. Study and prepare. There's a reason it is called LEGAL PRACTICE.

70. RemC_in_Chicago | August 26, 2014 at 5:34 pm

I stand…um..clarified!

71. andrewofca | August 26, 2014 at 5:36 pm

I doubt the 7th would grant them en banc review. It's too much work (for them) for such little gain. Even if they uphold the bans on review, they're no better off than a stayed ruling and that ultimately SCOTUS decides.

72. jdw_karasu | August 26, 2014 at 5:38 pm

No, long before the Tea Party. He remains a conservative Judge. He's perhaps closer to O'Connor rather than a GOP judges who moved leftwards of O'Connor like Blackman, Stevens and Souter. In contrast, Kennedy probably to the right of O'Connor on pretty much everything other than selected LGBT rights issues. I think like O'Connor coming around, Posner over time has come around.

The GOP prior to Reagan has people to the *left* of O'Connor and Posner. Hence Blackman, Stevens and Souter. I always point to Howard Baker on the political side. It wasn't as if he was a Liberal Republican, but he was closer to a true moderate in the 70s, and hardly the only one. It was more with the rise of RR and then the various Litmus Tests to run "RINOs" out of the party the the whole of the party shifted continually to the right. At the same time, the appointments of RR and GHWB shoved the court to the right, which was firmed up by W.

73. jdw_karasu | August 26, 2014 at 5:48 pm

I don't think even Kennedy will buy that one at this point.

And let's be honest if we're all about equality here: we'd just as soon see this not even be an issue addresses in a SCOTUS decision on same sex marriage. There are a not insignificant number of Poly people in this country. Those of us carrying the flag for equality on the current issue should be ready to support their fight for equality down the road.

74. jdw_karasu | August 26, 2014 at 6:01 pm

We can hope for a push. It's 7-3 GOP right now. With Posner it would be 3 Dem + Posner, and just 1 of the other 6 GOP needed to make it 5-5.

Of those other GOP judges, 4 of them have been serving with Posner for 20+ years. Even without Easterbrook, he might be able to shake Flaum, Kanne or Rovner over to our side. Perhaps he pulls it off.

It's unfortunate that Victoria Nourse's nomination died in 2010/11. Still pissed that Harry & Co. didn't change the rules back then.

75. RemC_in_Chicago | August 26, 2014 at 6:05 pm

I'm listening to the audios with headphones to catch what I missed earlier today. Solicitor General Fisher's body language was a sight to behold. While being battered by the judges' questions, he would wrap his arms tightly around his chest and waved his hands in an agitated way that expressed his…well…agitation. The guy from WI—Samuelson—looked like he was fresh out of college (I couldn't find him listed on the WI AG website). It struck me as I sat there how remarkable it was to hear the (presumably) straight judges coming to the defense of gay people—This from the perspective of someone who was an adolescent in the 70s whose frame of reference is Anita Bryant. Finished IN; now on to WI.

76. FredDorner | August 26, 2014 at 6:08 pm

The state's arguments were treated with contempt because they fully deserved contempt. It was truly remarkable. They treated the states' arguments in the exact same way the court would have treated them if the issue were a ban on mixed-race marriage. It's the way ALL the courts should be doing it, rather than the usual pretense of equanimity.

Judge Hamilton summed it up best when he observed this about Wisconsin's utter lack of any rational basis for the ban:
"What it is is a reverse-engineered theory to explain marriage in such a way that you avoid the logic of Lawrence [v Texas] and ignore a good deal of history about the institution of marriage and provide this very narrow artificial rationale for it."

Interesting too that Judge Posner seems skeptical of the entire concept of heightened scrutiny and instead takes a "balance of harms" approach to the issue.

77. Steve | August 26, 2014 at 6:15 pm

Not being able to have someone to carry their name is the least problem in societies where polygamy is common. It creates social strife in general because marriageable women become a scarce commodity and their price literally goes up. Getting married is hugely expensive and is becoming almost unaffordable for some.

Though those aren't really issues in western countries because polygamy would be less common here, even if legalized.

78. Jen_in_MI | August 26, 2014 at 6:15 pm

Kagan pointed this out in court during arguments for Windsor: even the Congressional Record was very clear in recording the passage of DOMA as "expressing moral disapproval" of LGBT people. Animus is THE reason all of the bans were passed, full stop. I am delighted the Posner held their feet to the fire to explain the anti-ME arguments, because there simply aren't any not linked to animus.

79. Zack12 | August 26, 2014 at 6:23 pm

She should have been able to get through.
There is no way Johnson should have been able to put a hold on her as he hadn't even been sworn in yet.
But then again, Democrats didn't start taking the courts seriously until the past year or so.
They finally realized what Republicans knew long ago, the courts matter.

80. Steve | August 26, 2014 at 6:24 pm

They very well known that the truth about why those bans were passed wouldn't stand a chance in court. There is plenty of evidence for what was really said in the legislatures and the media. Fortunately for them, most courts are extremely reluctant to spell it out or quote them.

81. davepCA | August 26, 2014 at 6:31 pm

Yes, that remark from Hamilton at the end really stood out, especially because it wasn't a question. He was just plainly calling 'bullshit' on the prior statement by the state's lawyer. Good.

82. Jen_in_MI | August 26, 2014 at 6:38 pm

I agree with your assessment of Sutton. What troubles me so much about a possible loss at the 6th is the fact that of all currently pending ME appeals, the Michigan case is the ONLY one whereby a complete trial was held (presumably because Judge Friedman wanted to lay bare the bankruptcy of the anti-ME arguments with findings of fact that would carry weight at the appeals stage). For the 6th to ignore the preponderance of evidence supporting the lower court ruling would be nothing more than water-carrying for bigots (IMO).

83. tornado163 | August 26, 2014 at 6:49 pm

I felt embarrassed for the Wisconsin lawyer (and to a lesser extent the Indiana lawyer). Toward the end, Hamilton was practically begging him to give any harm that allowing same-sex couples to marry will have on the state or on opposite-sex couples. And the Wisconsin lawyer couldn't name a single one. Even when Judge Hamilton said he could just conjecture a possible harm, the state's lawyer was stumped. That seemed like a half-assed defense of the ban to me.

84. StraightDave | August 26, 2014 at 6:55 pm

I finally got to listen to the arguments in the 7th today. That was quite the ass-kicking! The judges rightly called BS when it was warranted, all 3 of them, more so than I can recall seeing anywhere else. They were pretty much saying, "what do you think we are, stupid"?
Unless these guys are overworked, I really can't see this taking 2 months to write. There wasn't a whole lot of contention on that bench.

I think it was Posner who noted that the experiment with responsible procreation that WI held so dearly seems to have failed miserably, based on the numbers of single parents and foster children. So there's not much to try to preserve there.

85. Jen_in_MI | August 26, 2014 at 7:12 pm

I am just so thankful for and grateful to you for sharing your courtroom experiences today along with your impressions of the audio recordings. I had intended to attend arguments at the 6thCA but my spouse's disability prevented our travel plans. Having a first-person perspective to read is incredibly valuable. So…just, thanks a million. 😉

86. SeattleRobin | August 26, 2014 at 7:27 pm

I don't think Hatch is necessarily a good example of old school Republicans. Or maybe I should say he's an example of one branch that most resembles Tea Partiers. He's always been on the far right of the party. The difference is he stood out more in bygone days because of it, now he fits right in.

87. Zack12 | August 26, 2014 at 7:31 pm

He sadly helped pull it there.
When the Religious Right got into the party, that was the beginning of the end.

88. Corey_from_MD | August 26, 2014 at 7:31 pm

I only wish that the hold over circuit judges in other courts could hear these recordings. One of my favorite moments (of many) was when the WI state lawyer was cringing and strugglingly badly after Judge Posner tore him a new one and lawyer said that he believes his yelllow light was flashing and Judge Williams said "the yellow light won't save you." She was basically saying "sweat, mofo."

89. Zack12 | August 26, 2014 at 7:33 pm

Kennedy is pretty much in the mold of Scalia, Alito, Roberts and Thomas sans LGBT issues and Capital Punishment for minors and other juvenile justice issues.
Other then that, the only good thing to say about him is the fact Bork and Doug Ginsberg would have been worse.

90. Zack12 | August 26, 2014 at 7:36 pm

The sad thing is many of these judges were put on the bench to do just that, especially the GWB judges.

91. SeattleRobin | August 26, 2014 at 7:54 pm

Yeah, I think polygamy will eventually gain traction as an issue that will work its way into the courts. But it's easily distinguishable from same-sex marriage and I really don't like to see the two mixed together. While nationwide marriage equality will likely make arguments for polygamy easier, marriage equality isn't necessary in order to make pro polygamy legal arguments.

92. SeattleRobin | August 26, 2014 at 8:09 pm

I'm about to finally listen to the audio. It's been great reading everyone's responses before I do. I especially appreciate hearing from RemC. I'm so happy for you that you got to go. Being able to watch history in the making first hand is a rare treat. Like you, I was a teen in the 70s with Anita Bryant a looming figure. On the one hand I know that it's only right and fair that we are on the brink of marriage equality. On the other, it seems unreal and impossible.

I have a question. Does anyone here think that a 3-0 opinion in our favor would prompt either Indiana or Wisconsin to decide to fold their hand and go home, forgoing an appeal to SCOTUS? I suspect not, but people more familiar with those two states might have some interesting perspectives.

93. Ragavendran | August 26, 2014 at 8:12 pm

I just got off an excellent and well-qualified panel discussion organized by Marriage Equality USA. For the details of the panel, click here. Some of the salient points from what I heard are below. The sentences beginning with "I think" are my own thoughts, not discussed during the panel discussion:

(1) Posner's push back on heightened scrutiny isn't necessarily a sign that he won't be willing to apply heightened scrutiny. (Existing rational basis circuit precedent is Bowers-based and this panel has the authority to overrule it as it isn't good law.) He was mostly criticizing the concept of judicial scrutiny as a whole.

(2) The polygamy discussion stemmed from the due process discussion where the question was, what is the scope of the fundamental right to marriage? Where do you draw the line? And at least one of the attorneys on our side was clear in answering that question based on existing Supreme Court precedent (as to why there is no legal slippery slope to polygamy). And Judge Crabb had given one answer – "at least polygamous people are allowed to marry and get something out of it plus marriage benefits, but gay people can't even do that." And if there is a slippery slope, it started with Loving itself, and it seems unfair to pile this question on us. I think Kennedy's quote from Schuette is on point in answering (or not answering) the "scope of the fundamental right" question: "individual liberty has constitutional protection, and that liberty’s full extent and meaning may remain yet to be discovered and affirmed." Ultimately, the panel seems to think that this question is best avoided by taking the easier, equal protection route.

(3) Today's Seventh Circuit panel seemed genuinely aware both of the real harms that the bans are causing and the urgency in getting the issue to the Supreme Court. Especially Posner. And if he is writing for a unanimous panel, then it will be very quick, perhaps even by the time Justices return from their break late-September.

(4) Hopefully Sutton is listening to today's arguments, and hopefully it causes him to rethink some things, but that's not something that can be reasonably predicted.

(5) It is highly unlikely that today's demolition of the WI and IN attorneys will shame their respective Governors/AGs to drop it here and not take it further, for fear of losing their traditional voting bases. The competing concern is losing their moderate base, but the former concern will likely prevail over the latter.

(6) Especially because this is likely a 3-0 win with Posner on our side, there is little chance of a reversal en banc, so that won't be a smart thing to do unless the purpose is simply to delay.

(7) The state's attorney's were woefully unprepared to answer some questions they should have expected, and refused to even speculate about harm when explicitly asked to do so.

(8) In light of McQuigg, a stay of the mandate is almost certain, and it'll likely be sua sponte, part of the opinion itself, like in the case of the Tenth Circuit.

Those are all the main points I can remember. If others who participated have more to add, please do!

94. Ragavendran | August 26, 2014 at 8:16 pm

Have fun! You're in for the ride of your life

To answer your question, see (5) in my comment below

95. FredDorner | August 26, 2014 at 8:18 pm

As a Wisconsinite, I doubt the bigots who run my state will drop their appeal. For Scott Walker it's about motivating the teabagger base to help him win reelection this year.

I doubt Mike Pence will drop his appeal either, although he's not up until 2016.

96. FredDorner | August 26, 2014 at 8:44 pm

I totally agree about Posner and the issue of judicial scrutiny. He seems to prefer a test balancing harms vs benefits.

97. Zack12 | August 26, 2014 at 9:05 pm

That and keeping his profile with the Religious Right intact.
As for Pence, he was a bigot in Congress, he won't change now that he's running the show from the Governor's office.

98. DrPatrick1 | August 26, 2014 at 9:40 pm

Animus is an unnecessary legal conclusion best reserved for SCOTUS. It does not establish a law as unconstitutional, nor does the lack of animus establish it is constitutional. Clearly, it is inrefutable that much (most/all) of the reason for these laws is based on animus. However, it is not the presence of animus, but the lack of any rational justification, of which animus cannot be one, for the law to exist that makes it unconstitutional.

99. Dr. Z | August 26, 2014 at 9:51 pm

Virtually every couple in my close circle of friends is poly. Marriage isn't even on their radar; or if it is, it is generally two members of the group who want to formalize their relatuonship without that marriage affecting their other significant relationships. Poly marriage would be hugely complicated. That's not to say it's necessarily wrong; but as of now, I'm not hearing a big desire for it.

100. DrPatrick1 | August 26, 2014 at 9:54 pm

My non-lawyer breakdown of their due process concerns: sure you guys have an easy argument on equal protection grounds, the state grants marriage and benefits to one class, excludes a different class, and doesn't even attempt to offer up a reason, and frankly it boggles the mind to try to conjure one, but due process? If there is a fundamental right to marry, what is it? How do you define that right? However you define the right, how would any limit on that right be constitutional. I mean, if there is a fundamental right to marry the person of one's choice, why couldn't you choose someone already married? You see, we agree with you all on equal protection, but I'm not sure we want to drag due process in to this. Sure, if we agreed with you then heightened scrutiny would apply and we would side w you, but then wouldn't we open the door to challenges on any other marriage restriction? Best we just drop that whole due process and let you win based on equal protection. Your side wins and we don't open the door to other restrictions.

101. Johan | August 26, 2014 at 9:55 pm

And it was interesting he repeatedly asked one of the defenders to name who BENEFITS from the ban, before he switched to what harm there would be in letting homosexual (his words) couples marry.

102. DrPatrick1 | August 26, 2014 at 10:02 pm

I took that as Posner doesn't like the whole separation of equal protection based on type of class thing that SCOTUS has used in determining how to apply the 14th amendment. He wants a simpler, non class based assessment where the judicial branch is supposed to weigh the pros and cons and decide which side is heavier. The opposite side's counsel stated this was the job of the legislature, to weigh the pros and cons when they write the laws, and not the job of the judiciary. I must say, I do not agree with Judge Posner on his analysis of equal protection, even is he clearly intimated that by his analysis our side wins.

I think this court will find we win on equal protection based on rational basis. Because the defense of the law cannot survive rational basis, they will not reach heightened scrutiny.

103. DrPatrick1 | August 26, 2014 at 10:08 pm

Yes, that was emotionally fun, but I'm not sure the WI counsel was wrong when he said those are questions for the legislature. It is not the judicial branch's job to weigh the utility of a law, simply whether the law is constitutional. Certainly when a legislative body passes a non binding resolution there is little to no utility, but that doesn't mean it is unconstitutional.

The legal checkboxes are how the ruling will be upheld. Without them, we will see a favorable ruling being unnecessarily reversed.

104. SeattleRobin | August 26, 2014 at 10:41 pm

Yeah, I thought it was interesting to hear what they were saying that a successful fundamental right argument would imply. But I was a little troubled by it as well, because if that's true, then the problem already exists because SCOTUS has already stated its fundamentalness several times. It seemed like the judges just don't want to go there, despite the fact that the answer seems pretty obvious.

And that's where my biggest disappointment in our side resides. Neither equality attorney supported the fundamental right argument well at all, and the one in the Indiana case fumbled that part completely. Luckily, the fact that the attorneys for the states didn't fumble but were sacked for a safety is the best thing we had going for us.

105. DrPatrick1 | August 26, 2014 at 10:43 pm

I think (Posner?) gets the whole first cousins thing wrong, but the judges addressed the core issue themselves.

If marriage exists to channel procreative energies into stable relationships, then why, in the case of first cousins, must they first prove they are infertile before they can marry? Doesn't allowing these marriages say that marriage must be something other than channeling procreative (or potentially procreative) energies?

The issue isn't, well you let these terrible incestuous people marry so why ban the gays.

I liked when the judges ganged up on the states by asking why the state is only interested in children when they are accidental offspring. I wish they had asked "how is it rational to deny the benefits and stability of marriage to the very couple the same state has entrusted in the care of these children when you purport a rational justification of the prohibition of marriage to be providing the benefits and stability of marriage to these same children?"

And I am sick and tired (and I mean rose level Baker sick and tired) of "marriage serves to tie children to their biological mother and father". Ummm, no, marriage may tie children to their married parents, but this is independent of whether it is their biological mother and/or father. In fact, in the case of a cheating wife, marriage functions to draw a legal separation between the biological but Unmarried father and his biological child and instead ties the nonbiological husband to the child (based on presumption of paternity laws). I wish this would be challenged, their side throws it out as accepted fact when it is patently false!

106. SeattleRobin | August 26, 2014 at 10:47 pm

Yeah, Posner was getting on my nerves a bit with all that. I do think balance of harms should probably play a greater, or at least explicit role. But the existing framework shouldn't be thrown out in favor of that, because sometimes classification and amount of deference is key. They should operate together.

I also thought Posner got off the rails a couple times, especially early on with cousin marriage. He kept calling it incest, and it seems more like a personal ick factor with him, which sidetracked things into irrelevant territory.

107. DrPatrick1 | August 26, 2014 at 10:48 pm

Yes, and the whole "we need to protect the children" line of arguments in these cases was a Hail Mary pass intercepted and returned for a touchdown!

108. SeattleRobin | August 26, 2014 at 11:01 pm

Agreed. The very real complexity is why I don't like seeing polygamy mixed into the equality debate. They are very different issues, with different legal arguments (at least on the defense side). When I said eventually I was thinking decades, not five years. But after same-sex marriage has been commonplace nationally for a while, I think more poly people will start asking why can't the three of us marry each other, since gender isn't important.

109. TonyMinasTirith | August 26, 2014 at 11:05 pm

I can't see the 7th circuit granting an En Banc hearing, especially if this panel rules unanimously for (or against) equality. The circuit has already denied en banc hearing once already and it's quite uncommon for circuit courts to undermine their panels by granting an en banc hearing anyway. The full court also knows that their decision is just a way point on the way to the Supreme Court anyway, so why take a chance of 1) being on the wrong side of history, 2) take a chance on being slapped down by the Supremes if they "get it wrong". I don't see an en banc review being granted. Also, why would the states attorneys want a second chance to have their briefs handed to them again? I would think based on what happened today, these particular attorneys wouldn't want to take their poor arguments up to Justices Soto-Mayor, Kagan, and Ginsburg, or even Kennedy.

110. RnL2008 | August 26, 2014 at 11:16 pm

I totally agree with your comment……and why do these judges even entertain that as a valid argument!!!

As I sit here listening to the oral arguments with the State of Indiana….all those lawyers have is that when men and women get together that a baby is always somehow going to happen and that argument is TOTALLY IRRELEVANT and the judges hammered them about it!!!

111. TonyMinasTirith | August 26, 2014 at 11:16 pm

I found Judge Hamilton's "reverse-engineering" comment to be the best comment of both hearings today. I hope the panel says the same thing word for word in their written opinion. Hamilton just came right out and said, you made up your theory after the fact in complete pretext just to justify what you can not otherwise justify. Then there was the point where Judge Williamson told Samuelson that the yellow light "wont' save you". I think these comments basically showed their hands. And Judge Posner right off the bat wasn't buying ANY of it. He didn't even allow the Indiana attorney to get into the Baker controls canard. He nipped that in the bud straight off and you could tell Posner had that all ready. Baker was never brought up again. Trying to claim "Baker controls" is now just the lazy lawyers plan walking into court. What do these attorney's think after 20 plus trials, the circuits judges are just going to say…oh, you're right Baker forecloses any further discussion, you win, case closed, lets all go get lunch now? Seriously…

112. ebohlman | August 26, 2014 at 11:19 pm

Couple (hehe) points of distinguishability:

1) Accommodating three or more partners necessarily involves a change to the set of rights and responsibilities associated with marriage in a way that removing restrictions on which two competent adults can marry doesn't.

2) Simply dropping the two-person requirement alters the terms of existing marriages in a way that removing restrictions on which two competent adults can marry doesn't; each partner in an existing marriage entered the relationship with the understanding that it would be exclusive. A big part of the history of marriage equality in the broad sense has been a move away from the notion that one party can unilaterally dictate the terms of the relationship (in some ways, no-fault divorce has been a backwards move on this one which is why it hasn't been an unmixed blessing).

113. bayareajohn | August 26, 2014 at 11:20 pm

I didn't imply that they were not probing the checkboxes, but they went beyond them to explore what justice requires. The Courts should not be satisfied to accept a post-hoc reimagining of a law just because it fits the questionnaire.

114. DrPatrick1 | August 26, 2014 at 11:23 pm

Except that is all rational basis requires. This is why a SCOTUS ruling based on some heightened scrutiny would be so valuable

115. bayareajohn | August 26, 2014 at 11:27 pm

That was exactly my point in a different post. The record of this Court's exploration into actual justice will help further the cause and provide levers for arguments before SCOTUS. Revealing the absence of basis and presence of gerrymandering of rationale into the record is not wasted time.

116. Zack12 | August 26, 2014 at 11:34 pm

That debate will likely come up at some point but I can tell you from the couples I know that have done poly.. it hasn't ended well for them.
Just from what I've seen if people wanted to make an argument poly relationships don't last long term, they would get no argument from me.

117. FredDorner | August 27, 2014 at 12:03 am

"It is not the judicial branch's job to weigh the utility of a law, simply whether the law is constitutional."

That's where I found Posner's comments against graduated judicial scrutiny interesting. His balancing test of harms vs benefits would in effect obviate the notion of a rational basis for a law being generally sufficient, and a court would instead always need to compare the harms and benefits of a law in order to determine its constitutionality. In effect he's really requiring at least heightened scrutiny in all cases.

118. ebohlman | August 27, 2014 at 12:49 am

I'd say Rovner, who's pretty much an old-school Chicago Republican, would likely make it 5 for us.

This is not co-incidental or strange, and is one of the reasons there was s significant delay between the SA Constitutional Court ruling that there existed a right to SS marriage, and Parliament finally legislating it.

S Africa is a country with huge cultural diversity, where many forms of traditional marriage have existed for centuries, but under apartheid, the law made effective provision only for the Western, Christian and Jewish forms. With the new constitution, with a very strong bill of rights protecting from discrimination on grounds of sexual orientation as well as many others, the ConCourt had no option but to agree that ME should apply. When parliament took up the matter, they in turn had to consider all the other protections in the constitution, and so had to provide for legislative provision also for all the other forms of marriage that had already existed, without legal protections (polygamous marriage, Muslim, Hindu and other faith marriages, common law marriage, and more.

120. HalPri | August 27, 2014 at 1:38 am

This was such a treat. Thanks for posting the links.

The main Indiana argument that I heard is that the state can limit marriage to heterosexual couples because only heterosexual couples can produce unintended children. This is a dumb argument in several ways, but here's one way which I haven't seen mentioned. The fact that only heterosexuals can produce unintended children may be true now, but one could imagine advances in contraception that simply eliminated this situation. Maybe you would need to take something to get pregnant, rather than the current reverse situation. If that happened, would Indiana stop issuing marriage licenses?

121. montezuma58 | August 27, 2014 at 2:40 am

Why not polygamy if we allow marriage equality is a fair question. But when it the answers come out the true motives come out. The anti side simply says if you allow same sex marriage you must allow polygamy and leave it at that. They make no attempt to address any of the plethora of issues related expanding marriage beyond two people.

At least outside of court the polygamy canard is usually lumped in with incest or marrying pets which easily belies the true motive for polygamy discussions. The real reason for bringing up polygamy is to make implicit comparisons to Warren Jeffs type of arrangements. Else they would at least make an attempt to address issues such as intestacy, powers of attorney, insurance benefits, etc. that currently exist for a marriage between two people but aren't easily expanded beyond that.

If marriage equality comes about due to a ruling based on equal protection it is pretty easy to cut off debate about polygamy since it's relatively easy to argue two people wanting to form a union are not similarly situated to three or more under current marriage laws.

If it is a due process claim the answer is less obvious. It's not necessarily a slam dunk for precluding plural marriage (assuming that is a must for going forward with marriage equality for couples). The answer gets back to the how not the why. Without a concrete structure laid out for a marriage with more than two people you might as well be arguing about the constitutional rights of the Tooth Fairy, Easter Bunny, and Santa Clause. If the courts simply said limiting marriage to just couples was unconstitutional there would still be tons of work to do either legislatively or judicially to make it work. With couples lifting restrictions based on gender requires no effort of consequence as has been demonstrated several times. In essence we are not only talking about a "new right" with polygamy we are also discussing an unknown.

My opinion is that if marriage equality for couple being constitutional necessitate allowing polygamy (or any other structure beyond two people) to be legal it just means the bans for polygamy have been unconstitutional for a long time. I just don't think it's as trivial to make that leap as the anti side claims. Each partner in a marriage being on equal legal footing regardless of gender makes implementing any form of plural marriage difficult today. Legalizing polygamy would have been easier decades ago when the man in the relationship had more rights and authority.

122. Jen_in_MI | August 27, 2014 at 5:17 am

Do your friends consider themselves to be polyamorous instead, since they aren't seeking marriage (at this time)? I have found (being polyamorous myself) that many people confuse that with polygamy, when they are not synonymous – and I am certainly not suggesting that you are in any way confused. 😉

123. RemC_in_Chicago | August 27, 2014 at 5:18 am

Double, triple ditto. I was hoping that Judge Williams was explicitly going to your observation about rationality but I suppose her observation about choosing to become parents was implicitly directed to your points. I've often wondered why your point about how the state benefits when gay couples adopt otherwise abandoned children. Or how absurd it is that the states claim marriage protects and supports irresponsible people (who accidentally have children) but must punish through their bans they very people who come to the rescue, so to speak.

124. RemC_in_Chicago | August 27, 2014 at 5:25 am

I want to echo Johan's comments below but also address your item 7. The apparent youth of Timothy Samuselon, plus the fact that he's not even listed on the AG's website as holding any significant position, plus his total lack of preparedness, made me wonder if the AG's office threw him to the wolves. That is, they knew they were a snowball in hell and didn't want to subject their bigger folks to the indignity of the experience. That may be a naive p.o.v. that also takes into account the presumption of the panel selection from the en band request. Lawyers, please chime in.

125. RemC_in_Chicago | August 27, 2014 at 5:32 am

I'm sorry regarding your difficulties and I'm glad I could be useful. I stupidly didn't take any paper and pen with me into the courtroom because I thought we were highly restricted to what we could bring into the building. As an ex-English major, I itched to be making quick notes of the comments as they happened so I could have done a better, more accurate job of reporting. The plaintiffs—! They must be elated and so hopeful…I really appreciated the impatience with the b.s. that hasn't been evident in the other cases—like everyone pretending that there wasn't bare animus motivating most of the people who created and continue to defend these laws. I kept looking over to the states' lawyers wondering if they really, really believed the stuff they were uttering, or was it them just being forced to do their jobs?

126. Jen_in_MI | August 27, 2014 at 5:34 am

HAHAHA – I am sure Rose appreciated that hat tip.

127. Dr. Z | August 27, 2014 at 5:37 am

Yes, polyamorous. If that many of my close friends were polygamous I'd have to be living in a remote corner of southern Utah.

128. RnL2008 | August 27, 2014 at 7:03 am

I hope you were referring to a different Rose…….lol, but I am tired of the Baker reference in all of these arguments!!!

129. Zack12 | August 27, 2014 at 7:24 am

I agree, her dissent in the Hobby Lobby case shows she is not beholden to the Religious Right.
On the other hand, Joel Flaum agreed with Sykes in her awful ruling so it's a safe bet he would be ruling against us but then again, some judges view LGBT rights and reproductive rights differently.

130. GregInTN | August 27, 2014 at 7:28 am

The timing seems to suggest that the WI decision on whether to appeal will likely be made after the November election. How will the election influence the decision?

131. JayJonson | August 27, 2014 at 7:29 am

Posner's position regarding levels of scrutiny seems to be similar to that of Kennedy, who apparently also does not like creating protected classes. However, as the SmithKline decision by Judge Reinhardt indicates, many jurists and scholars have concluded that in the Lawrence and Windsor decisions, Justice Kennedy clear applied at least heightened scrutiny. Of course, one may argue that "rational basis" and "heightened scrutiny" are subjective classifications and that "rational basis" doesn't mean any possible reason however unlikely. This may be one reason Posner was so aggressive in pointing out the absurdity of many of the states' arguments.

132. JayJonson | August 27, 2014 at 7:35 am

I would love a SCOTUS ruling based on intermediate or heightened scrutiny primarily because it would have a great impact, especially in inhibiting legislatures from passing anti-gay bills. But I don't expect one. Justice Kennedy simply doesn't like such classifications. Yet, as many district courts have observed in recent years in our cases, rational basis does not have to be toothless. I would be happy with a "rational basis" ruling as forceful as Lawrence or Windsor, which had lots of teeth.

133. Dr. Z | August 27, 2014 at 7:39 am

Yeah, you would think that by this "procreation" argument that if the State had to remove children from the custody of their biological parents then the parent's marriage would be dissolved, since the whole purpose of marriage (according to them) is kinder kirche kuche. Their position is absurdity piled onto absurdity.

134. Dr. Z | August 27, 2014 at 7:44 am

Yes, the number of relations between objects goes up as N(N-1)/2. Two people have one relationship. Three people have three pairings. Four people have six, and so forth. You can very easily claim that the law is designed to regulate ONE relationship at a time, and that any departure from that would require an entirely new legal framework for managing these extra relations.

135. JayJonson | August 27, 2014 at 8:03 am

I think they use the "Baker controls canard" because it is really all they have and because they know it is code that can be used to disguise homophobia. That is why we see it used by the dissenting judges in the Ninth Circuit (in the Prop 8 case) and more recently in the decisions handed down by the Circuit Courts in the marriage equality cases. They don't really believe that it makes any sense that a summary dismissal handed down four decades ago hasn't been affected by doctrinal developments since, but it gives them an excuse. What these judges really believe is that homosexuals do not deserve equal rights, but they cannot say that.

136. JayJonson | August 27, 2014 at 8:05 am

Good point. Yet another reason to vote for Mary Bourque.

137. TomPHL | August 27, 2014 at 9:06 am

Since everybody being married to everybody else, the logically absurd extreme of the right to polygamy, is unworkable and meaningless, it would seem that the state has a right to limit the right to some specific number. This being the case I can't see why the number can't be one. I have no moral objection to polygamy and its variations and permutations, but see no reason why the state would be precluded from forbidding it by the constitution. The mantra that "everyone should be allowed to marry anyone of their choice" may be good PR but it is not the reason we will or should win on ME in the courts.

138. JayJonson | August 27, 2014 at 9:55 am

Posner was certainly greatly influenced by Windsor. His concern for the children raised by gay and lesbian parents seems to come directly from Windsor.

139. davepCA | August 27, 2014 at 10:24 am

Good point about the cousin marriage. The fact that certain couples can only marry once they prove they CANNOT procreate proves marriage is not just for procreation. And don't forget the Turner v. Safley decision, which I think makes that point even stronger – a prison inmate with no chance of parole and no way to procreate still has the right to marry, and in this case IT IS THE STATE ITSELF which is preventing the inmate from procreating via the incarceration. So clearly the state provides civil marriage for reasons other than simply 'channeling procreative activity'.

140. Mike_Baltimore | August 27, 2014 at 11:00 am

Add in the probable time table:

The hearing was in late August, so the ruling (if hurried along) could come down sometime in October/early November.

Appeal for en banc would take a week or so, then time for rebuttal, with the en banc hearing in late November/early December. Decision would then be in January/February.

By that time, SCOTUS should have filled it's schedule, and among the cases should be at least one of the three cases already in SCOTUS's hands, now awaiting for a decision of whether or not to grant cert.

The states, if they go the 'en banc' route, are thus telling us that they are betting that SCOTUS won't rule on ME in the upcoming term, but will find a way to delay the decision until the 2015/16 term.

The problem with that thinking is that SCOTUS doesn't like to hand down MAJOR decisions just before a Presidential election, and prefers to defer to other years the making of MAJOR decisions (it will rule on MAJOR decisions, but will find ways to 'duck the issue' if possible), thus a delay by requesting en banc hoping to delay the request for cert until the 2016/17 term would only appear to be a delay tactic. This might excite the base, but it wouldn't excite the rest of the voting public (and face it, politicians need their base, but they also almost always need at least some of the 'other' voting public to win an election).

Add in that ME is gaining approval in the US (how many consecutive years now above 50%?) and the outlook on delaying/denying ME and still getting elected grows slimmer and slimmer the longer it takes SCOTUS to be able to come to a decision.

If I can deduce that delay will only delay, but not win a case, I trust the states can also, and thus they will not go the 'en banc route'. Then again, we have the examples of the AGs of UT, WI and CO and their muddleheaded decisions … .

141. Mike_Baltimore | August 27, 2014 at 11:08 am

The above helps illustrate why in-person or video is much more important than reading the written accounts/transcripts. Even audio transcripts can catch inflection of voice, but not the body language, thus in-person or video is (IMO) much better than a written transcript.

142. jdw_karasu | August 27, 2014 at 11:17 am

I think that's another big reason why Sutton would just as soon slow walk it. Below he has Judge Friedman's trial and ruling. If the 7th rules first, he may have Posner writing the opinion over to his side. Lastly, he has to suspect/know how Kennedy is going to rule, and the Kennedy will almost certainly be deferred to by the other 4 to write the decision. Those could be three GOP judges all writing opinions striking down bans. In turn, he'll be the GOP Circuit Judge who gets to vote to uphold several right before they're all struck down nationally.

Of course he could pass off the writing of the opinion to Cook, who probably would be more than happy to go to town upholding the ban. But it will still have Sutton's name on it.

From the hearing, he did seem to have more sympathy for our side than one would have expected. It was a sort of naive sympathy, but certainly far from the view Cook was taking. He also seemed to be thrashing about for ways to punt.

143. andrewofca | August 27, 2014 at 11:18 am

So after listening to the arguments last night and commentary & live accounts on this site, I'm ready to hazard a guess on outcome:

The bans get struck down unanimously AND we get heightened scrutiny. Posner will possibly not sign on to heightened scrutiny ruling, but the other 2 will vote in favor of it. There will be internal debate & revisions on this point among the judges, so the ruling will not come as quickly as we would like.

144. Eric | August 27, 2014 at 11:27 am

That and that most of the plaintiffs are already married and seeking in-state recognition, something Baker does not address.

145. Randolph_Finder | August 27, 2014 at 11:54 am

Agreed. If Posner votes against Marriage Equality, I will both be *extremely* angry and I will find him a hollywood agent.

146. Randolph_Finder | August 27, 2014 at 12:00 pm

The state of Utah has become more active in going against the Polygamous groups, so some have moved to other states…

147. Zack12 | August 27, 2014 at 12:06 pm

Same here, you don't give that kind of thrashing to one side and do a 180.

148. Zack12 | August 27, 2014 at 12:10 pm

Sutton has his eyes on the Supreme Court and he has already gotten grief for ruling to uphold Obamacare.
If he votes to uphold the gay marriage ruling, there goes his Supreme Court chances.
It's why he wants to punt so badly on this issue.
Because any ruling he gives in support of the ban will be seen as the crap it is and will also make his chances of getting through tough if the Democrats control the Senate.

The polygamy issue is totally unfair. It's like, when Loving was decided, they weren't having to justify "what about gay people? what about prisoners? what about dead-beat dads?"

There has to be a diplomatic, Kennedy-esque way of saying that future generations will defend and advocate for their own concepts of freedom and liberty.

151. Roulette00 | August 27, 2014 at 1:53 pm

How about: "Respectfully, your honor, the specter of polygamy appears on both sides of this case. The State's declared policy of nudging biological parents toward marriage will result in more arguments for polygamy, not fewer. Not all accidental children are the result of two unmarried people, or two people married to each other. The State's policy would endorse the idea that a serial seducer who impregnates women all over town should form a polygynous harem, or a stay-at-home wife cheating with other men while her husband is deployed overseas should be nudged toward marrying multiple husbands."

152. SeattleRobin | August 27, 2014 at 2:02 pm

Yes, you put into words what I was thinking, but couldn't articulate. I agree that weighing harms is important, but Posner seems to be bucking a long legal history by inserting that as the key variable while at the same time dismissing discussion of heightened scrutiny as nonsense. I guess I was just really taken aback by a circuit court judge going out on that limb. Then again, I guess jurisprudence doesn't change if judges don't do that from time to time.

153. SeattleRobin | August 27, 2014 at 2:17 pm

That's where all the complexity comes in. Polyamorous relationships can have numerous different configurations. And while polyamoury and polygamy are not synonymous, I think there's a tendency to assume that polygamy really only means one thing, a husband with more than one wife. But just like polyamoury, there are multiple possibilities. While ideally I believe people should be able to form such families with the legal protections of marriage, the practicalities of the whole thing are staggering.

154. SeattleRobin | August 27, 2014 at 2:27 pm

I got the impression that the state attorneys knew they have nothing and were embarrassed to be there. The judges basically pantsed them in open court and there wasn't anything they could do about it. It seems like the only argument they might truly believe in is tradition, but it doesn't get them anywhere.

155. LK2013 | August 27, 2014 at 3:23 pm

Samuelson got his J.D. in 1998 according to his LinkedIn profile, so he's certainly not fresh out of college. He just did a pretty bad job. But who could do a good job in the face of honest questions?

156. hopalongcassidy | August 27, 2014 at 3:59 pm

kinder kirche kuche……pregnant by the preacher and barefoot in the kitchen.

Ist Deutsch, ja?

schizen.

157. jjcpelayojr | August 28, 2014 at 3:50 pm

They ignore it because that's the latter half of Kennedy's majority concurrence opinion in Windsor when he stated that the federal government overreached with DOMA and favored the federalism clause, then caveated it with states not infringing on U.S. Constitutional rights. It's always that dang caveat that gets dropped off when right-wingers quote Kennedy to back their state's rights position.

158. jjcpelayojr | August 28, 2014 at 4:04 pm

See, this is where I respectfully disagree regarding support for legal protections for polygamous marriages. And the reason I do is because of how such contracts/relationships are constructed for dissolution. If you think about the emotional complexities, severity and legalities of how marriages are dissolved today when only 2 persons are involved (and usually only one person willing to end the relationship), how much more violent and messy would it get when it's multiple? And what more when children are involved where essentially everyone has claim to parental rights within the legal framework of marriage?

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